ECB entitled to refuse access to two documents relating to
the economic situation in Greece
>> On the basis of Decision 2004/258, any EU citizen any
natural or legal person residing or having its registered office in a EU Member
State, has a right of access to documents of the ECB. Nonetheless, the ECB must
refuse access where, inter alia, disclosure of the requested documents would
undermine the protection of the public interest
Ms Gabi Thesing, a journalist for Bloomberg, requested the
ECB to grant access to two documents, entitled ‘The impact on government
deficit and debt from off-market swaps. The Greek case’ and ‘The Titlos
transaction and possible existence of similar transactions impacting on the
euro area government debt or deficit levels’.
The ECB refused access to those documents on the ground,
inter alia, of the protection of the public interest so far as concerned the
economic policy of the EU and Greece. Ms Thesing and Bloomberg challenged that
decision before the General Court, putting forward three pleas in law
in support of their action. The first alleged infringement of the second indent
of Article 4(1)(a) of Decision 2004/258 in so far as the ECB incorrectly
interpreted the exception to the right of access relating to the protection of
the public interest so far as concerned the economic policy of the Union and
the Hellenic Republic. The second plea concerned the exception to the right of
access relating to the protection of the commercial interests of a natural or
legal person, under the first indent of Article 4(2) of that decision. The
third plea alleged infringement of Article 4(3) of that decision relating to
the protection of the ECB’s internal deliberations and consultations.
The Court pointed out that Decision 2004/258 sought to
authorise wider access to ECB documents than that which existed under the
system established by Decision ECB/1998, while at the same time protecting the
independence of the ECB and of the NCBs, and the confidentiality of certain
matters specific to the performance of the ECB’s tasks. Article 2(1) of
Decision 2004/258 therefore gives any citizen of the Union, and any natural or
legal person residing or having its registered office in a Member State, a
right of access to ECB documents, subject to the conditions and limits defined
in that decision.
The Court held that that that right was subject to certain
limits based on reasons of public or private interest. The Court pointed out
that Decision 2004/258 provided, in Article 4, for a system of exceptions
authorising the ECB to refuse access to a document where disclosure of that
document would undermine one of the interests protected by Article 4(1) and (2)
or where that document contained opinions for internal use as part of
deliberations and preliminary consultations within the ECB or with NCBs. The
Court held that since the exceptions to the right of access referred to in
Article 4 of Decision 2004/258 derogated from the right of access to documents,
they must be interpreted and applied strictly.
The Court held that if the ECB decided to refuse access to a
document which it had been asked to disclose under Article 4(1) of Decision
2004/258, it must, in principle, explain how disclosure of that document could
specifically and effectively undermine the interest protected by the exception
– among those provided for in that provision – upon which it was relying.
Moreover, the risk of that undermining must be reasonably foreseeable and not
purely hypothetical (see, by analogy, Case C‑506/08 P Sweden v MyTravel
and Commission [2011], on which I wrote this
post).
The Court stated that with respect to the extent of the
review of the legality of an ECB decision refusing public access to a document
on the basis of the exception relating to the public interest provided for in
the second indent of Article 4(1)(a) of Decision 2004/258, the ECB must be
recognised as enjoying a wide discretion for the purpose of determining whether
the disclosure of documents relating to the fields covered by that exception
could undermine the public interest.
The Court found that “the European Union judicature’s review
of the legality of such a decision must therefore be limited to verifying
whether the procedural rules and the duty to state reasons have been complied
with, whether the facts have been accurately stated, and whether there has been
a manifest error of assessment or a misuse of powers” (see, by analogy, Case C‑266/05
P Sison v Council [2007], on which I wrote this
post).
The Court held that the exceptions to the right of access to
documents provided for in Article 4(1)(a) of Decision 2004/258 were framed in
mandatory terms. It followed that the ECB was obliged to refuse access to
documents falling under any one of those exceptions once the relevant
circumstances are shown to exist, and no weighing up of an ‘overriding public
interest’ is provided for in that provision, in contrast with the exceptions
referred to in Article 4(2) and (3) of that decision (see, by analogy, Joined
Cases T‑3/00 and T‑337/04 Pitsiorlas v Council
and ECB [2007]).
The Court held that in the light of the very vulnerable
environment in which the financial markets found themselves at the time of
adoption of the contested decision, the assessment that such an error would
undermine the economic policy of the Union and Greece could not be rejected as
manifestly incorrect. The Court argued that such an error might have had
negative consequences on access, in particular for that Member State, to the
financial markets and might therefore have affected the effective conduct of
economic policy in Greece and the Union.
According to the Court, the ECB was therefore entitled to
base its refusal to grant access to the first document on the exception
provided for in the second indent of Article 4(1)(a) of Decision 2004/258.
>> Charter of Fundamental Rights
The applicants also
claimed that, in order to avoid a breach of their rights under Article 10 of
the ECHR, it was necessary to construe and apply the exception referred to in
the second indent of Article 4(1)(a) of Decision 2004/258 in the manner stated
by the applicants. In this respect, they refered to the judgments of the
European Court of Human Rights in Társaság a Szabadságjogokért v. Hungary of 14
April 2009, Kenedi v. Hungary of 26 May 2009 and Gillberg v. Sweden of 3 April
2012 (the latter two not yet published in the Reports of Judgments and
Decisions)
The Court pointed that
Article 10 of the ECHR provides, in its relevant part, that everyone had
the right to freedom of expression and that this right included freedom to hold
opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. The exercise of these
freedoms, since it carried with it duties and responsibilities, might be
subject to such formalities, conditions, restrictions or penalties as were
prescribed by law and were necessary in a democratic society for the protection
of the reputation or rights of others or for preventing the disclosure of
information received in confidence.
The Court observed that Article 52(3) of the Charter of
Fundamental Rights, which has the same legal value as the Treaties in
accordance with the first subparagraph of Article 6(1) TEU, provided that, in
so far as the Charter contained rights which corresponded to rights guaranteed
by the ECHR, the meaning and scope of those rights were to be the same as those
laid down by the ECHR. The Court however held that that provision was not to
prevent Union law providing more extensive protection.
The Court pointed out that pursuant to Article 52(7) of the
Charter, the explanations drawn up as a way of providing guidance in the
interpretation of the Charter, namely the Explanations relating to the Charter
(OJ 2007 C 303, p. 17), were to be given due regard by the courts of the Union
and of the Member States.
The Court held that it was apparent from the Explanations
relating to the Charter that Article 10 of the ECHR correspondedto Article 11
of the Charter, according to which everyone is to have the right to freedom of
expression. This right included freedom to hold opinions and to receive and
impart information and ideas without interference by public authority and
regardless of frontiers. The freedom and pluralism of the media were to be
respected.
The Court stated that according to Article 52(1) and (2) of
the Charter of Fundamental Rights, any limitation on the exercise of the rights
and freedoms recognised by that charter must be provided for by law and respect
the essence of those rights and freedoms. Subject to the principle of
proportionality, limitations may be made only if they were necessary and
genuinely met objectives of general interest recognised by the Union or the
need to protect the rights and freedoms of others.
The Court held that rights recognised by the Charter for
which provision was made in the Treaties were to be exercised under the
conditions and within the limits defined by those Treaties. However, the Court
pointed out it was clear that Article 11 of the Charter, in conjunction with
Article 52(1) and (2) of the Charter, contained rights which corresponded to
those guaranteed by Article 10 of the ECHR. The Court thus found that those
articles of the Charter must therefore be given the same meaning and the same
scope as Article 10 of the ECHR, as interpreted by the case-law of the European
Court of Human Rights (see, by analogy, Case C‑400/10 PPU McB [2010] and C‑256/11
Dereci and Others [2011]).
According to the Court, the judgments of the European Court
of Human Rights the applicants referred to did not permit the conclusion that,
by refusing to grant access to the documents at issue, the ECB misconstrued the
scope of the right of access as interpreted in the light of Articles 11 and 52
of the Charter and of Article 10 of the ECHR.
